Tag: Easement

I heard John King speak at the Hunterdon County FERC scoping meeting. He sounded extremely reasonable, gave well thought-out arguments. And it was clear he was severely pissed at PennEast and the FERC.

John is the director of the Hunterdon County Board of Freeholders, so his words carry some weight.

He opens:

The subject of the Penn East natural gas pipeline has sparked comment and controversy since the unveiling of the project’s concept last year. This Freeholder Board withheld judgment to afford the pipeline’s proponents and critics a fair hearing and consider additional issues affecting Hunterdon County as a whole. In light of the facts before us, we are compelled to oppose Penn East’s application.

Like many people (myself included), he and the rest of the board was not instantly against the PennEast pipeline. He was willing to listen to what they had to say and see what benefits they might afford us.

From my POV, what he found is that:

1) This pipeline is not meant to benefit the people of New Jersey. Any such benefit would be mere side line of opportunity, not the main point.

2) The choice of route is incredibly bad.

3) They are choosing the easy way instead of the ethical way.

In his words:

Our objections are based upon (1) the disregard of potential alternate paths using existing easements that may result in the abuse of eminent domain to destroy conservation easements and pre-empt County open space policy; (2) the insufficiency of proposed compensation to affected landowners; (3) the threat of construction- generated water contamination in specific neighborhoods serviced by private wells; and (4) the absence of a lasting public benefit outweighing the burdens upon homeowners in
the project’s path.

He goes on to point out how PennEast is almost systematically wiping out Open Space conservation easements in the County, and is not even trying to find alternatives.

Among the properties lying in the proposed pipeline’s path are 23 farms constituting 2,007 acres of County-preserved open space. If approved, the Penn East pipeline would necessarily extinguish the County’s conservation easements of those those farms and trump a County open space policy mandated by three successive voter referenda. This issue alone warrants our opposition.

Moreover, Penn East has raised the specter of eminent domain —presumably to thwart the County’s defense of its interests in the preserved open space. This threat arises despite the existence of alternate routes within established public utility rights-of-way, including similar pipeline easements.. It is our understanding that Penn East has not contacted some utility companies to negotiate co-location of its pipeline within their easements. A judicial taking of property for use by a for-profit corporation should always be a last resort. We will never support a proposal that threatens the condemnation of land where less draconian measures of property acquisition have not first been exhausted.

The above issue is one of the biggest ones I personally have with PennEast. They aren’t even really trying here. Their route choices are predominantly based on playing with Google Earth, and a single aerial reconaissance. If they were serious about minimizing impacts they would do real surveys before even getting the FERC involved.

John goes on to talk about the inadequate compensation involved:

Penn East also proposes inadequate —and therefore unjust —compensation to Hunterdon taxpayers in the project’s path. The utility conglomerate merely proposes to pay owners the one-time loss of value attributed to the new encumbrance on property. Pipelines earn continuous profits potentially to include additional revenue from other public utilities. The benefits Penn East would reap from any targeted property are analogous to those received by wireless providers from cell. towers. Wireless companies place cell towers on another’s property with an agreement to provide the owner with a
stream of income, much like a lease. When the company leases those towers to other wireless providers, the land owner receives additional income due to the third party’, commercial use of the owner’s land. Properly owners in the pipeline’s path should be treated no diiferently. Thus, if Penn East is going to earn continuous profits from the exploitation of the land of another, it should make that owner a partner.

The issue of people’s wells is of course well known. He argues that PennEast must avoid these entirely.

Construction disturbance near a local drinking water supply raises contamination concerns. The proposed project slices through 53 acres of Tier 1 well protection areas —neighborhoods with residents overwhelmingly dependent on the consumption of well water. Prior local experience with drinking water contamination caused by poorly supervised construction near an existing transfer station proves that a potential threat to the well protection area is a well-founded misgiving. In fact, we would prefer that any pipeline be routed around this area entirely.

On the question of who benefits, PennEast again fails to give us any useful information.

The usual benefit of a pipeline passing near a neighborhood is access to the natural gas running through it. In the public hearings, however, Penn East could not guarantee that this pipeline would connect a single additional residence to natural gas in any time frame beneficial to current homeowners. In fact, our County is poorly served by natural gas due to the nature of its dispersed rural population. As a result, our homeowners are unlikely to reap much of any corresponding reduction in the cost of natural gas because so few County residents have access to it.

He closes with the point that the main issue is not the source of the gas. It’s an issue for some but not all. But that the route is nearly wrecklessly determined and will not benefit us.

To be clear, this Board has not swallowed whole every argument brandished by critics of Penn East’s application. We do not oppose the principle of constructing underground pipelines to transport natural gas. This method of delivering energy to consumers has proven far less dangerous than alternate means of transport: ship, truck and rail. Natural gas ibrelf is known to be a much cleaner burning fuel than this region’s other major sources of electricity, such as oil and coal. Secondly, several natural gas pipelines already cross Hunterdon County and have existed for decades. We do not subscribe to the notion that the mere presence of an additional pipeline within our County’s borders is a sufficient basis to oppose this project.

As proposed, however, the Penn East project unnecessarily threatens property rights at the Constitutional sword point of eminent domain, and offers no prospect of just compensation for the land it targets for lease or condemnation. The pipeline’s construction endangers an identifiable drinking water supply and fails to deliver the only lasting benefit that such a project can offer atfected neighborhoods: connection to natural gas. Thus, the Hunterdon County Board of Chosen Freeholders shall resolve to oppose the proposed configuration of the Penn East pipeline.

The Hunterdon County Board of Freeholder’s submission is available below:

Richard, Anthony, and Beverly of Delaware Township have a conservation easement on their farm, a very common thing in Hunterdon County. I like to read our town Open Spaces Committee minutes (they’re available online!) to see how the conservation process works, and to see what properties are being considered in my town.

One aspect of the process I forgot about is that you owners can ask for exception areas. These are exceptions to the conservation easements so the families can have some limited development rights. They’re usually very well defined and for a very specific reason.

This trio points out how these exceptions can make a bad situation even worse when the Pipeline company comes knocking on your door.

Four generations of the Danese family have worked the land for nearly a hundred years in Delaware Township, New jersey. Our 67-acre farm (Block 32, Lots 32 & 32.01,Delaware Township) has served as the center of our family’s history, life, and livelihood in this portion of Hunterdon County.

In recognition of the very special place that our farm occupies in our family’s heart, we agreed to preserve our farm in 2009, and accept the restrictions that farmland preservation places on landowners. Our farm was preserved with State, County, Municipal, and Federal funding through the Federal Farm and Ranch Lands Protection Program. We thought that we had preserved our land in perpetuity and that one of the parties to that agreement was the government of the United States of America.

Now we have been contacted by the PennEast Pipeline Company LLC, who tells us that they wish to run a high pressure, 36-inch gas pipeline across our preserved farm. What is worse, we fear that this pipeline will bisect a small area that we had exempted from the preservation as a non-severable exception area, to serve as a building envelope in the event that any of the future generations of our family wished to establish a home on that site. A high-pressure gas pipeline running through the non-severable exception area would make our building envelope useless as an area to build a home, and would destroy the remaining value of our preserved
property.

The Danese family has proved our willingness to abide by the restrictions imposed on our property by the preservation easement in order to preserve our farm for future generations. We are both shocked and saddened that the Federal government, our partner in land preservation, would even think of allowing a high pressure gas pipeline to cross our Federally preserved property and abrogate the agreement that we thought would be in effect in perpetuity.

Also to address the continued trespassing of PennEast employees on private land, and the implications of allowing trespassers to continue violating landowners’ no trespassing notices, as well as FERC’s implicit approval of such trespassing by it’s acceptance of surveys that were obtained illegally.

3) Question 32 asks “When they come to get permission for signing the survey permission, what are their tactics that they use?” PennEast replies “If they are not able to reach the property owner by telephone, land agents will attempt to introduce themselves in person and will carry appropriate identification. If no one is home, they will leave contact information at the door.” My response to this is “We have posted No Trespassing signs all over our property. What gives PennEast agents the right to trespass on my property? Because of the rich wildlife that inhabits are property hunters and poachers illegally come onto our property. No one, unless invited, can trespass on our property!!!!

PE representatives have already seriously compromised their credibility. They have cancelled meetings with communities because they cannot address the legitimate concerns raised by residents. Despite PE’s promises, they have yet to answer questions posed at the DE Twp September 29 meeting. They have used bogus math to exaggerate the tax benefits that communities would receive. And have misled residents about our rights and trespassed on my property.

Our property is a preserved farm of approximately 137 acres in Delaware Township NJ. The preferred alternative route for the pipeline that is currently proposed by PennEast would traverse the entire length of our acreage. We oppose this pipeline for many reasons which are of an economic, environmental, and legal basis.

First of all, economically, our farm would lose significant value if this pipeline is allowed to bisect it. The proposed alternative route appears to be very close to our residence. Assurances from PennEast employees notwithstanding, all real estate professionals with whom we have spoken have opined that property values would decrease dramatically. How does PennEast intend to compensate us for what we anticipated to be our retirement nest egg? The pittance they hope to pay for a right of way could not begin to approach the loss we will incur if our residence is located within the “impact zone” of a natural gas pipeline.

Many farmers have documented the loss of crop yields on land they use after pipelines have been constructed. We worked hard to establish high quality hay fields, on which we use minimal chemicals. The construction & maintenance of a natural gas pipeline through our farm fields will cause compaction of our loam soils, some of which have been rated as prime & in the top seventy five percentile of statewide importance. How does PennEast intend to protect our soils, allowing them to produce as they do now? The techniques currently employed to minimize damage to the soil strata have been shown as ineffective. The damage cannot be undone once the soil is torn apart & the layers separated. We will lose the use of our prime hay fields as well as suffer reduced yields where we are still able to farm.

Our farm is also of historical significance, having been in operation since the 1700s. In front of our house is a stone hitching post, next to a stone wagon mounting block. We have uncovered old wells & cisterns which were built with stones. The property is contingent to the Rosemont Agricultural Historical District in the area of New Jersey’s only remaining covered bridge.

Environmentally, there are many considerations. The first would be the already mentioned soil compaction. We also have two ponds, one of which is fed by Plum Brook, a stream traversing the northern, wooded section of our farm. Plum Brook is home to minks, beaver, & muskrat, to name a few. The brook feeds into the Wickecheoke Creek, which makes its way to the Delaware River. The pond in our forest contains many fish, including bass & many species of turtles. The pipeline is proposed to cut through Plum Brook, which will cause devastation to the wildlife habitat. To the south of Plum Brook is an open grassland area which we provide for the birds who nest in such areas. Bobolinks & Eastern Meadowlarks live here and breed; their numbers are in decline due to a lack of territory, so we feel it is necessary to set aside land where they will be able to thrive. Another bird in decline that we are involved in trying to help is the threatened American Kestrel. Our farm has been part of the New Jersey American Kestrel Nest Box Project for the past 5 or 6 years, allowing the state to place the nesting boxes on the utility poles which cross our hay fields. Many baby kestrels have been born & banded here. Putting this pipeline adjacent to the power line will increase the already hot summer temperatures, making the survival of these precious babies less likely.

Legally, we have concerns about the selection of preserved farmland for a pipeline. As owners of a preserved farm, we are legally obligated to abide by five pages of deed restrictions. One of these restrictions reads as follows:

“No sand, gravel, loam, rock, or other minerals shall be deposited on or removed from the Premises excepting only those materials required for the agricultural purpose for which the land is being used.”

Another restriction follows:

“No activity shall be permitted on the Premises which would be detrimental to drainage, flood control, water conservation, erosion control, or soil conservation, nor shall any other activity be permitted which would be detrimental to the continued agricultural use of the Premises.”.
How can we be bound by law to uphold restrictions to the use of our property, yet a private company could be allowed by the FERC to violate those legal encumbrances?

We have sacrificed & struggled to return this farm from the neglected, fallow fields we originally found here, to a productive, self sufficient homestead. Our electricity is completely solar generated. We grow our own vegetables & hay for our horses. We try to live frugally, with respect for the land, mindful of our carbon footprint. We pay our taxes & our mortgage. This is our dream, the American Dream. Allowing the PennEast pipeline to be constructed through our farm would turn that dream into a nightmare. We will stand with our neighbors & refuse to allow this private, for-profit LLC access to our land. No action should be the determination by FERC in PennEast’s bid to destroy our preserved lands.

Like Dan and Carla I don’t understand how eminent domain can be used to take away land protected by the state. Doing a little research I came upon the following article – this discusses electrical power lines instead of gas ones, but I believe the principles are the same:

With respect to property owned wholly by a private entity, the FERC permit would entitle the permit holder to acquire a necessary right-of-way by eminent domain if the holder could not acquire the right-of-way through negotiation with the property owner. The court with jurisdiction over the condemnation proceedings would determine the just compensation owed, which would be the fair market value of the property on the date of the condemnation (including applicable severance damages).26
FERC permit holders may not, however, condemn property owned by the United States or a state. The 824p(e) exception states:

In the case of a permit under subsection (b) for electric transmission facilities to be located on property other than property owned by the United States or a State, . . . the permit holder may acquire the right-of-way by the exercise of the right of eminent domain[.]
(Emphasis added.) Thus, because the exception precludes the use of eminent domain, if FERC were to issue a permit for a transmission facility slated to cross any federal or state property, the permit holder would need to reach agreement with the federal or state agency responsible for managing that property in order to obtain a right-of-way.27

The scope of the 824p(e) exception is uncertain. Whether the exception prohibits condemnation of partial interests in land (such as conservation easements) held or co-held by federal or state government has not been indicated by Congress and not yet determined by a court. The 824p(e) exception will apply to partial interests in land to the extent that these interests are considered “property,” and can be “owned.” Conservationists and some land management agencies presumably will seek an expansive interpretation of these terms to maximize the scope of the 824p(e) exception. DOE, FERC, and utility companies, in contrast, are likely to seek a narrow interpretation of these terms to maximize siting options.

So the question becomes, can farmland and Open Spaces protected by NJ open spaces easements be protected in this manner? I wish I knew the answer. I know all local conservation organizations up to the county level are against the pipeline (the Hunterdon County Board of Freeholders gave a resounding speech against the pipeline last night at the FERC scoping meeting). I have several state representatives and senators are against the pipeline. But I haven’t found any documentation on state agencies weighing in.

Alex and Laura of Pennington go into details of of how their farm was preserved through the New Jersey Green Acres program several years ago:

Let me say categorically and emphatically that we are strongly against this idea. We worked extremely hard over many years with a consortium of nonprofit land preservation organizations to place a conservation easement over our property, which formed a cornerstone of preserved lands that include significant and vital stream corridor and woodland habitats for wildlife. It seems outrageous that the government, acting through New Jersey’s Green-Acre Program, would work so hard and expend so much of the public’s treasure and effort to preserve land, only to allow you to smash a substantial right-of-way, which would involve cutting down large amounts of preserved forests and carving through wetlands, through pristine lands that provide important ecological resources. It perhaps goes without saying that the stream corridors and wetlands and surrounding woodlands provide vital habitat for wildlife, important buffer zones for aquifer recharge and storm water sequestration, and passive recreation opportunities for residents. Our property, which we worked so hard to preserve, provides roughly 4000 feet of such stream corridor preservation, which you propose to undo completely.

Let me review a few of the facts we discussed. We granted a conservation easement over our property in December 2003 to a group of nonprofit land trust oriented organizations, including the Delaware and Raritan Greenway Land Trust, the Borough of Pennington, a local municipality, and the Stony Brook-Millstone Watershed Association. Each of these organizations used an allocation of available funds from the New Jersey Green-Acres program. The transaction was a so-called bargain sale, in which the nonprofit organizations and municipality contributed a portion of the funds for the bargain sale, and we donated a substantial portion of the value. We have lived quietly on the property since this time and worked to continue to preserve and maintain the conservation values of the ecologically sensitive lands and open spaces. The easement in question involves a combination of conservation easement areas(>95%), with and without public access, and a small portion dedicated to our private residential use, that comprises less than 5% of the property.

Left unchecked, this project would powerfully dissuade people granting conservation easements over the lands in the future. In light of the diminished state financial resources that are available for land preservation now and in future, it will dramatically undermine the willingness of individual private landowners to grant conservation easements over their lands, and set back the cause of preserving land in our region to a measurable degree. These easements provide a vital tool to prevent real estate development from encroaching on the semi-agrarian nature of our region and our quality of life, and create the conditions under which we avoid flooding, create aquifer recharge, and maintain wildlife population and recreational opportunities.

The public access areas dedicated to the public access-conservation use are used by dozens of people a day for passive recreation such as running, hiking, walking and cross-country skiing. The trails are well used. The trails on the property that pivotally connect to interlocking lands owned by the state of New Jersey Department of Environmental Protection in the so-called Lake Baldwin Wildlife Management Area, and other lands protected from development and under conservation easement that are owned and managed by the D&R Greenway Land Trust together comprise a mosaic of hundreds of acres of preserved property, trails and natural beauty that provide an important buffer to development and a vital ecological function.

Your project would unavoidably cut through these important trail networksand wetlands, cutting across a swath of woods and agricultural lands, and reducing their conservation value. Protecting preserved lands is a critical stewardship function of the local land trusts we worked with and who continue to have responsibility for this vital role. I served astrustee of the D&R Greenway Land Trust for eight years after we granted the conservation easement, because I felt it was important to work hard in this critical stewardship process of defending the easements once they are granted and finding new properties to preserve. My wife Laura, has recently joined the board of the Stony Brook Millstone Watershed Association in part driven by a similar concern.

We pledge to you that together with as many willing nonprofit land preservation organizations as will support us, and by organizing individual owners of property affected by your plan, we will work hard to defeat your project at every stage. As a society we cannot abide by the wanton destruction of preserved lands.

They bring up a very good point I hadn’t considered before: by breaking conservation easements, PennEast will be providing a powerful disincentive for people to protect lands in the future.

This is getting to be a sadly familiar story. Chris from Etters, PA has owns farmland in PA, and PennEast wants to put their pipeline through it.

I am writing this letter in regards to the PennEast Pipeline Project, pre-filing docket number PF 15-1-000. With the threat of eminent domain looming, we are being coerced to agree to an easement. If the project is approved, FERC will be doing a disservice to the landowners within the
path of the pipeline. I am opposed to this project. I do not want it on my property. The PennEast Pipeline Project is extremely detrimental to the property owners directly affected by its construction, nearby residents, and the environment.

The PennEast Pipeline is planned to cross my family’s property from West Scenic Drive to Hoch Road in Danielsville, Pa. This property is currently rented to local farmers for use in crop production. If the pipeline is constructed on this land, may render a sizable portion of the land as unusable for its intended purpose. Loss of farmable land would impact our income, as well as that of the farmer through lost production. Farmers would be impacted equipment damage and / or catastrophic accidents due to shallow or exposed pipelines; pipelines which are easily damaged by plowing, construction and weather-related accidents, leading to explosions and fires. As landowners we cannot accept the responsibility of damage the pipeline may cause to farmers, area residents or the environment. The proposed route for the PennEast Pipeline traversesfarmland, un-developed land, and areas that have a history of sink-holes; furthering the risks of destructive and catastrophic occurrences. The farm has been in our family for over 60 years. In addition to farming, the land is used for recreational purposes, which would be diminished due to the pipeline. Further, property values and future plans for developing the land for a family profit would be severely impacted by
this project. In addition to lowering property value, having a dangerous gas line on our property will increase our insurance costs. The pipeline would cutoff access to the property from Hoch Road or West Scenic Drive. As building over the pipeline is not permissible, our family will have extremely limited options as to what can and cannot be done on our own land.

Also of great concern is what will happen to the pipeline when it is no longer useable? Will PennEast be required to return the land to its native state? Once can look anywhere in the country and see deteriorating buildings and infrastructure; both of which are dangerous and an eyesore.
On the PennEast site, the proudly boast they will donate UP TO $5,000 to communities along the pipeline. This paltry amount will barely cover a months’ worth of salary for emergency responders, environmental monitoring and remediation. Such an amount will not even make a dent in the amount needed to buy equipment to respond to accidents.

I hadn’t noticed the $5,000 Chris mentions on the PennEast web site. That amount seems pretty insulting for a pipeline that’s going to have 1 billion cubic feet of natural gas running through it per day.